Colorado faces another Supreme Court showdown as the justices consider whether the state can bar Catholic families from its universal preschool program.
Background
In 2020 Colorado voters approved a ballot measure creating a state‑funded universal preschool program, later codified into law for the 2023‑2024 school year. Participating schools must sign a contract promising equal enrollment regardless of race, religion, sexual orientation, gender identity or other protected traits.
A coalition of two parents, two Catholic parishes, their preschools and the Archdiocese of Denver sued, saying the requirement violates the First Amendment by forcing them to choose between religious belief and state funding.
U.S. District Court dismissed the claim in June 2024, rejecting the free‑exercise arguments and refusing to block the rule. The Tenth Circuit affirmed that decision in September 2025, holding that the contract condition is neutral and generally applicable and therefore consistent with the First Amendment.
The Free Exercise Framework
The Supreme Court’s 1990 decision in Employment Division v. Smith held that a neutral, generally applicable law may incidentally burden religious exercise without violating the Constitution.
Amanda Dixon of the Becket Fund for Religious Liberty told The Federalist that lower courts have misapplied Smith, treating it as a de‑facto “default rule” that lets governments impose burdens as long as they appear neutral.
She argued the St. Mary plaintiffs still prevail under Smith because the state’s funding condition directly targets religious exercise.
The Court’s 2022 Carson v. Makin ruling reinforced that states may not deny public benefits because of a recipient’s religious exercise. Petitioners cite that decision, claiming Colorado’s exclusion of Catholic schools from the preschool program imposes an unconstitutional free‑exercise burden.
A Path to Revising Smith
Legal analysts note the justices have shown willingness to chip away at Smith incrementally.
In Trump v. Slaughter (2024) the Court overturned a 1935 precedent on presidential removal authority, suggesting it could do the same with Smith without a sweeping overhaul.
Dixon said the Court may use St. Mary to issue clear guidance, preventing lower courts from repeatedly confronting the same Smith‑based dilemmas.
Oral arguments are set for Tuesday at 10 a.m. ET.
Shawn Fleetwood is a staff writer for The Federalist and a 2025 Dao Prize recipient. His reporting has appeared in RealClearPolitics and RealClearHealth. Follow him on Twitter @ShawnFleetwood.
